456). Third, Mr. Pendrey testified that Mr. Henrey did not contend he was being fired because Mr. Santose told him to violate procedures (Tr. 388). Accordingly, I find that Mr. Henrey did not file a complaint with the Nuclear Regulatory Commission, nor with Quality Control or his Union prior to his termination. Rather, he took this action subsequent to his termination, in retaliation for being fired.

    The Georgia Power Quality Concern claim was dismissed due to the fact that they could not substantiate Mr. Henrey's complaints. The U.S. Department of Labor could find no evidence to substantiate Mr. Henrey's complaints either. Consequently, Mr. Henrey requested a formal hearing.

    At the formal hearing of this matter, Mr. Henrey alleged that Mr. Santose ordered him to violate four safety procedures. The first alleged violation occurred when Mr. Santose allegedly instructed his crew to work without the Red Book of drawings in their possession. Mr. Gary Parker, a welding inspector for Pullman Power Products, testified that Mr. Henrey confidentially informed him that the required documentation was not present in the work area. Mr. Parker did not mention to anyone that Mr. Henrey had made a complaint until sometime after his termination. Based on his inspections, Mr. Parker concluded that Mr. Santose should be dismissed as a foreman because of the number of rejected inspections. Mr. Parker explained that the quality of the work of Mr. Santose's crew was not rejectable; rather it was the missing documents (Tr. 287-288). Consequently, Mr. Charles Cone, Jr., Pullman's Assistant Quality Control Supervisor, investigated Mr. Parker's complaints. Mr. Cone determined that Mr. Parker's complaint that the drawings were not in the work area at all times was not a terminable offense (TR. 526-527). Mr. Cone explained that the drawings should be in the work area while they are working, but that it is not required, unless there is an inspection (Tr. 524). Mr. Cone testified that he explained to Mr. Santose that he should make an effort to have the drawings at the work sites when Quality Control makes, their inspections, because it facilitates their jobs (Tr. 529). He further testified that he did not hear that Mr. Santose continued the trend of missing drawings. Mr. Parker testified that the fact that the drawings were not there when Quality Control was conducting their inspections, did not mean that they were not present when the work was being performed (Tr. 309). Mr. Parker did not regard any of the missing documents violations to be

detrimental to the safe operation of the construction of the plant (Tr. 312). Additionally, five of Mr. Henrey's co-workers, (Jr. Richard Dailey, Howard Barksdale, Samuel Lewis, Randall Knowles, and Frank Hayes), testified that Mr. Santose never directed anyone to violate any procedure (Tr. 468, 484, 487). Based on the totality of the evidence, I find Mr. Santose did not violate any safety procedure by failing to have the drawings available during the inspections. I further find that Mr. Santose corrected his trend of missing drawings. Additionally, I find that Mr. Santose did not retaliate against Mr. Henrey for complaining to Mr. Parker, because he had no idea of these "confidential" complaints prior to the termination.

    The second alleged violation occurred when Mr. Santose allegedly instructed "Mr. Henrey and his welder to inscribe another welder's number on a weld. The general procedure that is followed is that the welder who works on a weld must inscribe his number on that weld. However, welder Y may inscribe welder X's number on a weld if he has the proper documentation to verify that welder X actually performed the work, and if he has the authority to take such action (Tr. 396-399). Additionally, if two welders work on a particular weld, then they both must inscribe their numbers on it (Tr. 403). In this case, Mr. Henrey's assertion that Mr. Santose ordered him to violate procedures by inscribing another welder's number on a weld is not proved by a preponderance of the evidence. Indeed, while the record indicates that Mr. Santose ordered Mr. Henrey to inscribe another welder's number, there is no proof that Mr. Santose did not have the proper documentation to verify which welder actually performed the work. Nor is there any proof that Mr. Santose did not have the authority for such action. Accordingly, I find no procedures were asked to be violated in this instance.

and pre-heat the tack weld. The evidence in this case shows that Mr. Santose's order not to pre-heat was not a violation of safety procedures. He was specifically instructed by a Quality Control inspector not to pre-heat. Testimony furnished by Gary Parker indicates that Quality Control inspectors can disagree as to what is the proper procedure, and because there is alot of room for different interpretations, a higher level Quality Control inspector must intervene and make the final decision (Tr. 308). Mr. Charles Bowles, Pullman's Assistant Instrument Engineering Supervisor, testified that the process. sheets which he prepared for this project did not require pre-heating because he did not feel tack welds needed to be pre-heated (tr. 507). Mr. Bowles further testified that subsequently, after he and the field engineer researched this, he realized that he was incorrect and concluded that tack welds require pre-heating (Tr. 508). Nevertheless, the process sheets did not indicate his change in position. The process sheets are required to be physically present on the job sites. The purpose of the process sheets is to instruct the crafts (e.g. welders and pipefitters) on the documentation and sequence of events for installation. The process sheet for this project did not indicate one way or another whether welds had to be pre-heated (Stipulation of Facts, Tr. 519). Nevertheless, notwithstanding this stipulation and Mr. Bowles' testimony, Mr. Henrey assets that the process sheets specifically required pre-heating (Tr. 87). The technique sheets for this project indicated that welds greater than 1 1/2 inches needed to be pre-heated, but was silent concerning whether tack welds had to be pre-heated (Stipulation of Facts, Tr. 520). The totality of the record evidence shows and I find that the order not to pre-heat was not a violation. After he found out that pre-heating was required, Mr. Santose ordered his crew to pre-heat.

    The fourth and final alleged violation occurred when Mr. Santose allegedly ordered Mr. Henrey to install temporary materials permanently, and to hide or destroy the permanent materials he had requisitioned. Larry Masengale, Mr. Henrey's welder, and a pipefitter, agreed that Mr. Santose had ordered them to install the temporary materials improperly. However, as aforementioned, many of Mr. Henrey's co-workers, Jr. Dailey, Howard Barksdale, Samuel Lewis, Randall Knowles, Walter LaReau and Frank Hayes, testified that Mr. Santose never ordered anyone to violate procedures. Additionally, Mr. Santose testified that he never directed anyone to leave up temporary installations and

tell Quality Control that they are permanent (Tr. 426). Further, Mr. Santose explained that generally the team who puts up the temporary material is not the same team who puts up the permanent material. He also testified that because Mr. Massengale was not certified in weld tubing, he preferred not to work him on permanent installations (Tr. 427). Mr. Parker, Pullman's welding quality inspector, testified that temporary material may become a part of the permanent installation if it meets certain criteria (Tr. 281-282). Mr. Henrey testified at the hearing and in his deposition that he never complained to anyone about the alleged violation of leaving temporary material up as permanent prior to his termination because he did not consider it life threatening (Tr. 200). Clearly, the evidence fails to show that any safety violation occurred. Accordingly, I find that Mr. Henrey's temporary versus permanent allegation is without merit.

    Mr. Masengale's assertion that he was transferred to another area subsequent to Mr. Henrey's termination as a means of punishment is not supported by the evidence. Joseph Brown, the General Foreman for pipefitters instrumentation, testified that Mr. Masengale was transferred because of his seniority, not because of his qualifications. Mr. Brown explained that after the workload decreased, the company had to transfer instrumentation technicians to pipefitting (Tr. 491-494). Accordingly, I find that Mr. Masengale was not transferred for punishment reasons, rather for a legitimate company reason. Testimony furnished by Randall Knowles indicates that Mr. Henrey had a personal grudge against Mr. Santose (Tr. 488-490). Mr. Santose had instructed both Mr. Knowles and Mr. Henrey how to drill certain holes. Mr. Knowles misunderstood the directions. Mr. Henrey did not pay attention while the directions were given because he thought he knew the procedure. The holes were drilled incorrectly. As a result of this, Mr. Santose reprimanded Mr. Henrey and Mr. Knowles in front of the crew. Additionally, Superintendent Dan Hayes removed their overtime privileges upon hearing that Mr. Henrey felt there were no problems because they would fix it on double overtime. Mr. Knowles testified that Mr. Henrey was going to make Mr. Santose show him each and every step of every procedure because he had reprimanded him in Public.

    The main issue to be determined is whether Mr. Henrey was terminated in retaliation for complaints he made about alleged instructions to violate procedures. The Complainant asserts that

he was terminated for engaging in protected activity under the Act. The Respondent denies this assertion, and alleges that the sole reason Complainant was terminated was because of his insubordination towards his foreman.

    The statute which gives rise to this proceeding protects employees from discriminatory action directed toward them as a result of certain endeavors to pursue its enforcement. Section 5851(a) of 42 U.S.C. provides, in pertinent part, as follows:

    (a) No employer, including a . . . contractor or a subcontractor of a [Nuclear Regulatory] Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . .

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such proceeding or;

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.

    The implementing regulations state that:

any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee . . . who has engaged in any activity set forth in the statute. 29 C.F.R. § 24.2(b).

    In other words, the statute and its implementing regulations prevent employers from retaliating against employees who have "blown the whistle" on them for violating the federal statute.

    Clearly, this case falls under the dual motive discharge cases which arise under employee protection provisions found in a wide variety of statutes (See, e. g. Title VII of the Civil Rights Act of 1964, as amended, Section 704(a), 42 U.S.C.2000e-3(a); the Fair Labor Standards Act of 1938 as amended, Section 15(a)(3), 29 U.S.C. 215(a)(3); National Labor Relations Act, Section 8(a)(4), 29 U.S.C. 158(a)(4)). As aforementioned, Complainant asserts he was fired for engaging in protected activity, while Respondent claims that Mr. Henrey's termination was justified because he was insubordinate toward his foreman, Mr. Santose.

    The Second Circuit in Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2nd Cir. 1982) set forth the general principles which apply in these cases:

In Wright Line, a Division of Wright Line, Inc., 25.L NLRB 1083 (198), aff'd sub nom. NLRB v. Wright Line, 662 F.2d 899 (2st Cir. 1981), the NLRB adopted a new test in dual motive discharge cases for determining whether Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1973), has been violated. Under this test,

[Tlhe General Counsel [must] make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. (251 NLRB at 1089)

This rule was adopted from Mt. Healthy City School District Board of Education v. Doyle,

429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977), where the Court said that the burden was properly placed upon the employee to show that his conduct was constitutionally protected, and that such conduct was a motivating factor in the Board's decision not to rehire him. Thereafter, the district court "should have gone on to determine whether the Board [of Education] had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's [employee's] reemployment even in the absence of the protected, conduct." This is known as the "but for" test. In other words, the employee would not have been dismissed but for his engaging in protected activity. There is no precedent as to how cases under Section 5851 should be treated, but the legislative history of the section makes clear that recourse may be had to precedent under analogous situations. S.Rep.No.. 95-848, 95th Cong., 2d Sess. at 29, 1978 U.S. Code Congressional and Administrative News at 7303. The test adopted by the NLRB appropriately should be applied in Section 5851 proceedings.

Our view is that we should adopt the rule enunciated in the Mt. Healthy case which places the burden on the employer to show by a preponderance of the evidence that it would have reached the same decision as to the employee's dismissal even in the absence of the protected conduct.

    The Supreme Court reaffirmed the Wright Line approach to the question of burdens of proof in retaliatory discharge cases in NLRB v. Transportation Management Corp., 51 U.S.L.W. 4761 (Jan. 15, 1983).

    In Dartey v. Zack Co. of Chicago, 82-ERA-2 (April 25, 1983), the Secretary of Labor stated the rule as follows:

the employee must prove by a preponderance of the evidence that the protected conduct was a

motivating factor in the employer's action for the burden of proof or persuasion to shift to the employer to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.

    In this case, the evidence shows that Complainant did not engage in protected activity under the Act. I find Mr. Henrey was not a whistleblower. He admitted that he did not complain to anyone outside of Pullman personnel about the procedural violations until sometime after his termination. As I found earlier, the violations that he did allege were not substantial. In fact, I found that no safety procedures were violated. I conclude that Complainant did not engage in any protected activity, and that the sole reason he raised the allegations of procedural violations was to retaliate against Pullman for terminating him.

    Even assuming arguendo that Complainant did engage in protected activity, his next step is to prove by a preponderance of the evidence that the protected activity was a motivating factor in the employer's decision to discharge. In this case, Complainant failed to prove this burden. The majority of the evidence shows that the Respondent had no idea he had engaged in protected activity. Neither the Complainant's General Foreman, Superintendent nor Union Steward knew he had any complaints of violations prior to his termination. Moreover, even if the Complainant did prove he was discharged because of his protected activity, the burden shifts to Respondent to show the existence of a legitimate reason for discharge. In this case, Respondent states that the reason it terminated Mr. Henrey was because he used foul language and raised his hand to a superiors, which conduct cannot be condoned if respect for superiors is to be maintained. Clearly, Respondent has shown by a preponderance of the evidence that it would have reached the same decision to discharge even in the absence of the protected activity. Additionally, Complainant has failed to prove that "but for" his engaging in protected activity, he would not have been dismissed. Accordingly, I find that Mr. Henrey's complaint must be dismissed. Consequently, his prayer for back pay, punitive damages and attorney's fees must be denied.

    It is hereby ORDERED that Charles A. Henrey's complaint is DISMISSED.

       PARLEN L. MCKENNA
       Administrative Law Judge

Dated: [Jan. 29, 1987]
Metairie, Louisiana

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